.
.
.
Exhibit 3.1
-------------------------------------------
[OHIO SEAL] PRESCRIBED BY J. KENNETH BLACKWELL EXPEDITE THIS FORM: (SELECT ONE)
-------------------------------------------
Ohio Secretary of State MAIL FORM TO ONE OF THE FOLLOWING:
-------------------------------------------
Central Ohio: (614) 466-3910 PO Box 1390
Toll Free: 1-877-SOS-FILE (1-877-767-3453) [X] Yes Columbus, OH 43216
*** REQUIRES AN ADDITIONAL FEE OF $100 ***
-------------------------------------------
www.state.oh.us/sos PO Box 1028
- ------------------- [ ] No Columbus, OH 43216
e-mail: busserv@sos.state.oh.us -------------------------------------------
CERTIFICATE OF AMENDMENT BY
SHAREHOLDERS OR MEMBERS
(Domestic)
Filing Fee $50.00
(CHECK ONLY ONE (1) BOX)
- -----------------------------------------------------------------------------------------------------------------------------------
(1) Domestic for Profit (2) Domestic Non-Profit
[X] Amended [ ] Amendment [ ] Amended [ ] Amendment
(122-AMAP) (125-AMDS) (126-AMAN) (128-AMD)
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
COMPLETE THE GENERAL INFORMATION IN THIS SECTION FOR THE BOX CHECKED ABOVE.
- ------------------------------------------------------------------------------------------
Name of Corporation ProCentury Corporation
------------------------------------------------------------------------------------------------
Charter Number 1170133
-------------------------------------------------------
Name of Officer Edward F. Feighan
-------------------------------------------------------
Title President
-------------------------------------------------------
[X] Please check if additional provisions attached.
The above named Ohio corporation, does hereby certify that:
[ ] A meeting of the [ ] shareholders [ ] members was duly called and held on
--------------------------
(Date)
at which meeting a quorum was present in person or by proxy, based upon the quorum present, an affirmative vote was cast which
entitled them to exercise % as the voting power of the corporation.
----------------
[X] In a writing signed by all of the [X] shareholders [ ] members who would be entitled to the notice of a meeting or such other
proportion not less than a majority as the articles of regulations or bylaws permit.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
CLAUSE APPLIES IF AMENDED BOX IS CHECKED.
- -----------------------------------------------------
Resolved, that the following amended articles of incorporations be and the same are hereby adopted to supercede and take the place
of the existing articles of incorporation and all amendments thereto.
- -----------------------------------------------------------------------------------------------------------------------------------
541 Page 1 of 2 Last Revised: May 2002
- -----------------------------------------------------------------------------------------------------------------------------------
ALL OF THE FOLLOWING INFORMATION MUST BE COMPLETED IF AN AMENDED BOX IS CHECKED.
IF AN AMENDMENT BOX IS CHECKED, COMPLETE THE AREAS THAT APPLY.
- ---------------------------------------------------------------------------------------------------
FIRST: The name of the corporation is: ProCentury Corporation
------------------------------------------------------------------------------
SECOND: The place in the State of Ohio where its principal office is located is in the City of:
Westerville Delaware
--------------------------------------------------------- ---------------------------------
(city, village or township) (county)
THIRD: The purposes of the corporation are as follows:
-------------------------------------------------------------------------------------------------------------------
To engage in any lawful act, activity or business not contrary to and for which a Corporation may be formed under
the laws of the State of Ohio, and to have and exercise all powers, rights and privileges conferred by the laws of
Ohio on corporations, including, but not limited to, buying, leasing or otherwise acquiring and holding, using or
otherwise enjoying and selling, leasing or otherwise disposing of any interest in any property, real or personal,
of whatever nature and wheresoever situated, and buying and selling stocks, bonds, or any other security of any
issuer as the Corporation by action of its Board of Directors may, at any time and from time to time, deem
advisable.
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FOURTH: The number of shares which the corporation is authorized to have outstanding is: 21,000,000
---------------------------
(DOES NOT APPLY TO BOX (2))
- -----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------- --------------------------------
REQUIRED /s/ Edward F. Feighan 4-21-2004
Must be authenticated ------------------------------------------------------- --------------------------------
(SIGNED) by an authorized Authorized Representative Date
representative Edward F. Feighan, President
(SEE INSTRUCTIONS)
------------------------------------------------------- --------------------------------
------------------------------------------------------- --------------------------------
Authorized Representative Date
------------------------------------------------------- --------------------------------
------------------------------------------------------- --------------------------------
Authorized Representative Date
541 Page 2 of 2 Last Revised: May 2002
ADDITIONAL PROVISIONS
TO THE
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PROCENTURY CORPORATION
Fourth Article (continued)
4. CAPITAL STOCK I. CAPITAL STOCK. The total number of
------------- shares which the Corporation shall have
(CONTINUED) authority to issue is Twenty One Million
----------- (21,000,000) shares, of which Twenty
Million (20,000,000), each without par
value, shall be of a class designated
"Common Shares", and One Million
(1,000,000), each without par value, shall
be of a class designated "Preferred
Shares".
II. PREFERRED SHARES. The Board of Directors
is authorized to provide for the issuance
from time to time in one or more series of
any number of authorized and unissued
Preferred Shares. Subject to the
provisions of this ARTICLE 4 and the
limitations prescribed by law, the Board
of Directors is expressly authorized to
adopt amendments to these Amended and
Restated Articles of Incorporation in
respect of any unissued or treasury
Preferred Shares and thereby establish or
change the number of shares to be included
in each such series and fix the
designation and relative rights,
preferences, qualifications and
limitations or restrictions of the shares
of each such series. The authority of the
Board of Directors with respect to each
series shall include, but not be limited
to, determination of the following:
A. The distinguishing designation of
such series and the number of shares which
shall constitute such series;
B. The rate or rates of dividends
payable on shares of such series, the
conditions upon which such dividends shall
be payable (including whether they shall
by payable in preference to, or in another
relation to, the dividends payable on any
other class or classes or series of
shares) and the date from which dividends
shall be cumulative in the event the Board
of Directors determines that dividends
shall be cumulative;
C. Whether such series shall have
conversion privileges and, if so, the
terms and conditions of such conversion,
including but not limited to, provision
for adjustment of the
conversion rate upon such events and in
such manner as the Board of Directors
shall determine;
D. Whether or not the shares of such
series shall be redeemable and, if so, the
terms and conditions of such redemption,
including the date or dates upon or after
which they shall be redeemable, and the
amount per share payable in case of
redemption, which amount may vary under
different conditions and at different
redemption dates;
E. Whether such series shall have a
sinking fund for the redemption or
purchase of shares of that series and, if
so, the terms and amounts of such sinking
fund;
F. The rights of the shares of such
series in the event of voluntary or
involuntary liquidation, dissolution or
winding up of the Corporation, and the
relative rights of priority, if any, of
payment in respect of shares of that
series;
G. Voting rights, if any, associated
with the series, which may be full,
limited or denied, except as otherwise
required by law; and
H. Any other relative rights,
preferences and limitations of such series
which shall not be inconsistent with this
ARTICLE 4.
III. COMMON SHARES. The Board of Directors of
the Corporation is authorized, subject to
limitations prescribed by law and the
provisions of this ARTICLE 4, to provide
for the issuance from time to time of any
number of authorized and unissued Common
Shares, and shall determine the terms
under which and the consideration for
which the Corporation shall issue its
Common Shares.
A. Subject to the provisions of any
applicable law, at every meeting of the
shareholders, each holder of Common Shares
shall be entitled to one vote, in person
or by proxy, for each Common Share
standing in the name of such shareholder
on the books of the Corporation, on each
matter on which the Common Shares are
entitled to vote.
B. Subject to the rights of holders
of the Preferred Shares, the holders of
the Common Shares shall be entitled to
receive, when and as declared by the Board
of Directors, out of the assets of the
Corporation which are by law available
therefor, dividends payable in cash, in
property, or in shares and the holders of
the Preferred Shares shall
2
not be entitled to participate in any such
dividends (unless otherwise provided by
the Board of Directors in any resolution
providing for the issue of a series of
Preferred Shares).
C. In the event of any dissolution,
liquidation or winding up of the affairs
of the Corporation either voluntarily or
involuntarily, the holders of the Common
Shares shall be entitled, after payment or
provision for payment in full of the debts
and other liabilities of the Corporation
and the amounts to which the holders of
the Preferred Shares shall be entitled, to
share ratably in the remaining assets of
the Corporation available for distribution
to its shareholders to the exclusion of
the Preferred Shares (unless otherwise
provided by the Board of Directors in any
resolution providing for the issue of a
series of Preferred Shares). Neither the
merger or consolidation of the
Corporation, nor the sale, lease or
conveyance of all or part of its assets,
shall be deemed to be a liquidation,
dissolution or winding up of the affairs
of the Corporation within the meaning of
this Subparagraph III(C).
IV. NO PREEMPTIVE RIGHTS. No holder of shares
of this Corporation of any class shall
have, as such, as a matter of right, the
preemptive right to subscribe for or
purchase any part of any new or additional
issue of shares of any class whatsoever,
or of securities or other obligations
convertible into or exchangeable for any
shares of any class whatsoever or which by
warrants or otherwise entitle the holders
thereof to subscribe for or purchase any
shares of any class whatsoever, which now
or hereafter authorized and whether issued
for cash or other consideration or by way
of dividend.
V. CONVERSION AND EXCHANGE OF PREVIOUSLY
AUTHORIZED COMMON SHARES. Each Class A
Common Share, Class B Common Share and
Class C Common Share of the Corporation
outstanding immediately prior to the
effectiveness of these Amended and
Restated Articles of Incorporation shall
automatically and without further act or
deed be converted into and exchanged for
five hundred (500) Common Shares of the
Corporation, rounded down to the nearest
whole number to avoid the issuance of any
fractional Common Shares, upon the
effectiveness of these Amended and
Restated Articles of Incorporation.
5. CERTAIN No person shall be disqualified from being a
------- director of the Corporation because he or she is
TRANSACTIONS or may be a party to, and no director of the
------------ Corporation shall be disqualified from entering
into,
3
any contract or other transaction to which the
Corporation is or may be a party. No contract or
other transaction shall be void or voidable for
reason that any director or officer or other agent
of the Corporation is a party thereto, or otherwise
has any direct or indirect interest in such
contract or transaction or in any other party
thereto, or for reason that any interested director
or officer or other agent of the Corporation
authorizes or participates in authorization of such
contract or transaction, (a) if the material facts
as to such interest are disclosed or are otherwise
known to the Board of Directors or applicable
committee of directors at the time the contract or
transaction is authorized, and at least a majority
of the disinterested directors or disinterested
members of the committee vote for or otherwise take
action authorizing such contract or transaction,
even though such disinterested directors or members
are less than a quorum, or (b) if the contract or
transaction (i) is not less favorable to the
Corporation than an arm's length contract or
transaction in which no director or officer or
other agent of the Corporation has any interest or
(ii) is otherwise fair to the Corporation as of the
time it is authorized. Any interested director may
be counted in determining the presence of a quorum
at any meeting of the Board of Directors or any
committee thereof which authorizes the contract or
transaction.
6. AUTHORITY TO The Directors of the Corporation shall have the
------------ power to cause the Corporation from time to time
REPURCHASE and at any time to purchase, hold, sell, transfer
---------- or otherwise deal with (a) shares of any class or
STOCK series issued by it, (b) any security or other
----- obligation of the Corporation which may confer upon
the holder thereof the right to convert the same
into shares of any class or series authorized by
the articles of the Corporation, and (c) any
security or other obligation which may confer upon
the holder thereof the right to purchase shares of
any class or series authorized by the articles of
the Corporation. The Corporation shall have the
right to repurchase, if and when any shareholder
desires to sell, or on the happening of any event
is required to sell, shares of any class or series
issued by the Corporation. The authority granted in
this ARTICLE 6 of these Amended and Restated
Articles of Incorporation shall not limit the
plenary authority of the directors to purchase,
hold, sell, transfer or otherwise deal with shares
of any class or series, securities or other
obligations issued by the Corporation or authorized
by its articles.
7. CH. 1704 Chapter 1704 of the Ohio Revised Code shall not
-------- apply to the Corporation.
8. DIRECTORS; All of the authority of the Corporation shall be
---------- exercised by or under the direction of the Board
SHAREHOLDERS of Directors except as otherwise provided in these
------------ Amended and Restated Articles of Incorporation
4
or the Code of Regulations of the Corporation or
required by law. For the management of the business
and for the conduct of the affairs of the
Corporation and in further creation, definition,
limitation and regulation of the power of the
Corporation and of its directors and of its
shareholders, it is further provided as follows:
I. CLASSIFIED BOARD. Subject to the rights of
the holders of any class or series of
shares of the Corporation having a
preference over the Common Shares as to
dividends or upon liquidation to elect
additional directors under specific
circumstances, the number of directors of
the Corporation shall be fixed from time
to time by or in accordance with the
provisions of the Code of Regulations of
the Corporation. The directors, other than
those who may be elected by the holders of
any class or series of shares of capital
stock having preference over the Common
Shares as to dividends or upon
liquidation, shall be classified, with
respect to the time for which they
severally hold office, into three classes,
as nearly equal in number as possible, as
shall be provided in the manner specified
in the Code of Regulations of the
Corporation, one class to hold office
initially for a term expiring at the
annual meeting of shareholders to be held
in 2005, another class to hold office
initially for a term expiring at the
annual meeting of shareholders to be held
in 2006, and another class to hold office
initially for a term expiring at the
annual meeting of shareholders to be held
in 2007, with the members of each class to
hold office until their successors are
duly elected and qualified. At each annual
meeting of the shareholders of the
Corporation. the successors to the class
of directors whose term expires at that
meeting shall be elected to hold office
for a term expiring at the annual meeting
of shareholders held in the third year
following the year of their election.
II. NOTICE. Advance notice of nominations for
the election of directors, or of proposals
to be brought before a meeting of
shareholders, other than nominations or
proposals made by the Board of Directors
or a committee thereof, shall be given in
the manner provided in the Code of
Regulations of the Corporation.
III. FILLING VACANCY. Subject to the right of
the shareholders to fill a vacancy caused
by the removal of a director at the same
meeting at which the removal occurs, and
subject further to the rights of the
holders of any class or series of shares
of capital stock of the Corporation having
a
5
preference over the Common Shares as to
dividends or upon liquidation to elect
directors under specified circumstances,
newly created directorships resulting from
any increase in the number of directors
and any vacancies on the Board of
Directors resulting from death,
resignation, disqualification, removal or
other cause may be filled by the
affirmative vote of a majority of the
remaining directors then in office, even
though less than a quorum of the Board of
Directors. Any director elected in
accordance with the preceding sentence
shall hold office for the remainder of the
full term of the class of directors in
which the new directorship was created or
the vacancy occurred and until such
directors successor shall have been
elected and qualified. No reduction in the
number of directors constituting the Board
of Directors shall shorten the term of any
incumbent director.
IV. REMOVAL. Subject to the rights of the
holders of any class or series of shares
of capital stock of the Corporation having
a preference over the Common Shares as to
dividends or upon liquidation to elect
directors under specified circumstances, a
director, or the entire Board of
Directors, may be removed from office,
with cause, but only by the affirmative
vote of the holders of record of
outstanding shares representing at least
75% of the votes entitled to be cast by
the holders of all then outstanding shares
of Voting Stock (as defined in ARTICLE 9
hereof), voting together as a single
class, and entitled to vote in respect
thereof. Any vacancy in the Board of
Directors caused by any removal may be
filled by the shareholders at the same
meeting.
9. SUPER-MAJORITY I. Capitalized terms used herein are defined
-------------- in Paragraph IV of this ARTICLE 9.
VOTE FOR
--------
MAJOR
-----
TRANSACTIONS
------------
II. In addition to any affirmative vote
required by law or under any other
provision of these Amended and Restated
Articles of Incorporation or the Code of
Regulations of the Corporation or
otherwise, and except as otherwise
expressly provided in this ARTICLE 9:
A. Any merger or consolidation of
this Corporation or any Subsidiary with or
into (i) any Substantial Shareholder or
(ii) any other Corporation (whether or not
itself a Substantial Shareholder) which,
after such merger or consolidation, would
be an Affiliate of a Substantial
Shareholder, or
B. Any sale, lease, exchange,
mortgage, pledge, transfer
6
or other disposition (in one transaction
or a series of related transactions) to or
with any Substantial Shareholder of any
Substantial Part of the assets of this
Corporation or of any Subsidiary, or
C. The issuance or transfer by this
Corporation or by any Subsidiary (in one
transaction or a series of related
transactions) of any Equity Securities of
this Corporation or any Subsidiary to any
Substantial Shareholder in exchange for
cash, securities or other property (or a
combination thereof) having an aggregate
fair market value in excess of an amount
equal to five percent (5%) of the book
value of the Corporation, as determined in
accordance with generally accepted
accounting principles, as of the end of
the immediately preceding fiscal year, or
D. The adoption of any plan or
proposal for the liquidation or
dissolution of this Corporation if, as of
the record date for the determination of
shareholders entitled to notice thereof
and to vote thereon, any person shall be a
Substantial Shareholder, or
E. Any reclassification of securities
(including any reverse stock split) or
recapitalization of this Corporation, or
any reorganization, merger or
consolidation of this Corporation with any
of its Subsidiaries or any similar
transaction (whether or not with or into
or otherwise involving a Substantial
Shareholder) which has the effect,
directly or indirectly, of increasing the
proportionate share of the outstanding
securities of any class of Equity
Securities of this Corporation or any
Subsidiary which is directly or indirectly
Beneficially Owned by any Substantial
Shareholder, shall (except as otherwise
expressly provided in these Amended and
Restated Articles of Incorporation)
require the affirmative vote of the
holders of not less than 75% of the Votes
entitled to be cast by all holders of all
then outstanding shares of Voting Stock;
provided that such affirmative vote must
include the affirmative vote of the
holders of shares of Voting Stock entitled
to cast a majority of the votes entitled
to be cast by the holders of all then
outstanding shares of Voting Stock not
beneficially owned by the Substantial
Shareholder in question. Each such
affirmative vote shall be required
notwithstanding the fact that no vote may
be required, or that some lesser
percentage may be specified, by law or in
any agreement with The NASDAQ Stock Market
or any national securities exchange or
otherwise.
7
III. The provisions of this ARTICLE 9 shall not
be applicable to any Business Combination,
the terms of which shall be approved,
either in advance of or subsequent to a
Substantial Shareholder having become a
Substantial Shareholder, by three-fourths
(3/4) of the Whole Board, but only if a
majority of the members of the Board of
Directors in office and acting upon such
matter shall be Continuing Directors.
IV. For the purpose of this ARTICLE 9:
A. A "Person" shall mean any
individual, firm, Corporation or other
entity.
B. The term "Business Combination" as
used in this ARTICLE 9 shall mean any
transaction which is described in any one
or more of Subparagraphs (A) through (E)
of Paragraph II of this ARTICLE 9.
C. "Substantial Shareholder" shall
mean any Person who or which, as of the
record date for the determination of
shareholders entitled to notice of and to
vote on any Business Combination, or
immediately prior to the consummation of
any such Business Combination:
(1) Is the Beneficial Owner,
directly or indirectly, of more than
fifteen percent (15%) of the shares of
Voting Stock (determined solely on the
basis of the total number of shares of
Voting Stock so Beneficially Owned (and
without giving effect to the number or
percentage of votes entitled to be cast in
respect of such shares) in relation to the
total number of shares of Voting Stock
then issued and outstanding), or
(2) Is an Affiliate of this
Corporation and at any time within three
years prior thereto was the Beneficial
Owner, directly or indirectly, of more
than fifteen percent (15%) of the then
outstanding Voting Stock (determined as
aforesaid), or
(3) Is an assignee of or has
otherwise succeeded to any shares of this
Corporation which were at any time within
three years prior thereto Beneficially
Owned by any Substantial Shareholder, and
such assignment or succession shall have
occurred in the course of a transaction or
series of transactions not involving a
public offering within the meaning of the
Securities Act of 1933, as amended.
8
Notwithstanding the foregoing, a
Substantial Shareholder shall not include
(i) this Corporation or any Subsidiary, or
(ii) any profit-sharing, employee stock
ownership or other employee benefit plan
of this Corporation or any Subsidiary or
any trustee of or fiduciary with respect
to any such plan when acting in such
capacity.
D. "Beneficial Ownership" shall be
determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the
Securities Exchange Act of 1934, as
amended (or any successor rule or
statutory provision) or, if said Rule
13d-3 shall be rescinded and there shall
be no successor rule or statutory
provision thereto, pursuant to said Rule
13d-3 as in effect on December 31, 2003;
provided, however, that a Person shall, in
any event, also be deemed to be the
"Beneficial Owner" of any shares of Voting
Stock:
(1) Which such Person or any of
its Affiliates or Associates beneficially
own, directly or indirectly, or
(2) Which such Person or any of
its Affiliates or Associates has (i) the
right to acquire (whether such right is
exercisable immediately or only after the
passage of time), pursuant to any
agreement, arrangement or understanding
(but shall not be deemed to be the
beneficial owner of any shares of Voting
Stock solely by reason of an agreement,
arrangement or understanding with this
Corporation to effect a Business
Combination or upon the exercise of
conversion rights, exchange rights,
warrants, or options, or otherwise, or
(ii) sole or shared voting or investment
power with respect thereto pursuant to any
agreement, arrangement, understanding,
relationship or otherwise (but shall not
be deemed to be the beneficial owner of
any shares of Voting Stock solely by
reason of a revocable proxy granted for a
particular meeting of shareholders,
pursuant to a public solicitation of
proxies for such meeting, with respect to
shares of which neither such Person nor
any such Affiliate or Associate is
otherwise deemed the beneficial owner), or
(3) Which are beneficially
owned, directly or indirectly, by any
other Person with which such first
mentioned Person or any of its Affiliates
or Associates acts as a partnership,
limited partnership, syndicate or other
group pursuant to any agreement,
arrangement or understanding for the
purpose of acquiring, holding, voting or
disposing of any shares of capital stock
of this Corporation: and provided further,
however, that (i) no
9
director or officer of this Corporation,
nor any Associate or Affiliate of any such
director or officer, shall, solely by
reason of any or all such directors and
officers acting in their capacities as
such, be deemed, for any purposes hereof,
to beneficially own any shares of Voting
Stock beneficially owned by any other such
director or officer (or any Associate or
Affiliate thereof), and (ii) no employee
stock ownership or similar plan of this
Corporation or any Subsidiary nor any
trustee with respect thereto, nor any
Associate or Affiliate of any such
trustee, shall, solely by reason of such
capacity of such trustee, be deemed for
any purposes hereof, to beneficially own
any shares of Voting Stock held under any
such plan.
E. For purposes of computing the
percentage Beneficial Ownership of shares
of Voting Stock of a Person in order to
determine whether such Person is a
Substantial Shareholder, the outstanding
shares of Voting Stock shall include
shares deemed owned by such Person through
application of Subparagraph (D) of this
Paragraph IV but shall not include any
other shares of Voting Stock which may be
issuable by this Corporation pursuant to
any agreement, or upon the exercise of
conversion rights, warrants or options, or
otherwise. For all other purposes, the
outstanding shares of Voting Stock shall
include only shares of Voting Stock then
outstanding and shall not include any
shares of Voting Stock which may be
issuable by this Corporation pursuant to
any agreement, or upon the exercise of
conversion rights, warrants or options, or
otherwise.
F. "Continuing Director" shall mean
any member of the Board of Directors of
the Corporation who is unaffiliated with
the Substantial Shareholder and was a
member of the Board of Directors prior to
the time that the Substantial Shareholder
became a Substantial Shareholder; any
successor of a Continuing Director who is
unaffiliated with the Substantial
Shareholder and is approved to succeed a
Continuing Director by the Continuing
Directors; any member of the Board of
Directors who is appointed to fill a
vacancy on the Board of Directors who is
unaffiliated with the Substantial
Shareholder and is approved by the
Continuing Directors.
G. "Whole Board" shall mean the total
number of directors which this Corporation
would have if there were no vacancies.
10
H. An "Affiliate" of a specified
Person is a Person that directly, or
indirectly through one or more
intermediaries, controls, or is controlled
by, or is under common control with, the
Person specified.
I. The term "Associate" used to
indicate a relationship with any Person
shall mean (i) any Corporation or
organization (other than this Corporation
or a Subsidiary) of which such Person is
an officer or partner, or is, directly or
indirectly, the beneficial owner of ten
percent (10%) or more of any class of
Equity Securities, (ii) any trust or other
estate in which such Person has a
substantial beneficial interest or as to
which such Person serves as trustee or in
a similar fiduciary capacity, and (iii) an
relative or spouse of such Person, or any
relative of such spouse, who has the same
home as such Person, or is an officer or
director of any Corporation controlling or
controlled by such Person.
J. "Subsidiary" shall mean any
Corporation of which a majority of any
class of Equity Security is owned,
directly or indirectly, by this
Corporation; provided, however, that, for
the purposes of the definition of
Substantial Shareholder set forth in
Subparagraph (C) of this Paragraph IV, the
term "Subsidiary" shall mean only a
Corporation of which a majority of each
class of Equity Security is owned,
directly or indirectly, by this
Corporation.
K. "Substantial Part" shall mean
assets having a book value (determined in
accordance with generally accepted
accounting principles) in excess of ten
percent (10%) of the book value
(determined in accordance with generally
accepted accounting principles) of the
total consolidated assets of this
Corporation, at the end of its most recent
fiscal year ending prior to the time the
determination is made.
L. "Voting Stock" shall mean any
shares of capital stock of this
Corporation entitled to vote generally in
the election of directors.
M. "Equity Security" shall have the
meaning given to such term under Rule
3a11-1 of the General Rules and
Regulations under the Securities Exchange
Act of 1934, as amended, as in effect on
December 31, 2003.
V. A majority of the Continuing Directors
then in office shall have the power to
determine for the purposes of this ARTICLE
9, on the basis of information known to
them
11
(i) the number of shares of Voting Stock
Beneficially Owned by any Person, (ii)
whether a Person is an Affiliate or
Associate of another, (iii) whether the
assets subject to any Business Combination
constitute a Substantial Part of the
assets of the Corporation in question,
and/or (iv) any other factual matter
relating to the applicability or effect of
this ARTICLE 9.
VI. A majority of the Continuing Directors
then in office shall have the right to
demand that any Person who is reasonably
believed to be a Substantial Shareholder
(or holder of record shares of Voting
Stock Beneficially Owned by any
Substantial Shareholder) supply this
Corporation with complete information as
to (i) the record owner(s) of all shares
Beneficially Owned by such Person who is
reasonably believed to be a Substantial
Shareholder, (ii) the number of, and class
or series of, shares Beneficially Owned by
such Person who it is reasonably believed
is a Substantial Shareholder and held of
record by each such record owner and the
number(s) of the share certificate(s)
evidencing such shares, and (iii) any
other factual matter relating to the
applicability or effect of this ARTICLE 9,
as may be reasonably requested of such
Person, and such Person shall furnish such
information within 10 days after receipt
of such demand.
VII. Any determinations made by the Board of
Directors, or by the Continuing Directors,
as the case may be, pursuant to this
ARTICLE 9 in good faith and on the basis
of such information and assistance as was
then reasonably available for such purpose
shall be conclusive and binding upon this
Corporation and its shareholders,
including any Substantial Shareholder.
VIII. Nothing contained in this ARTICLE 9 shall
be construed to relieve any Substantial
Shareholder from any fiduciary obligation
imposed by law.
10. CONSTITUENCIES The Board of Directors of the Corporation, when
-------------- evaluating any offer of another party to (1) make
a tender or exchange offer for any Equity Security
of the Corporation, (2) merge or consolidate the
Corporation with another Corporation, or (3)
purchase or otherwise acquire all or substantially
all of the properties and assets of the
Corporation, may in connection with the exercise of
its judgment in determining what is in the best
interests of the Corporation and its shareholders,
give due consideration to all relevant factors,
including without limitation the social and
12
economic effects on the employees, customers,
suppliers and other constituents of the Corporation
and its subsidiaries and on the communities in
which the Corporation and its subsidiaries operate
or are located and any other factors which the
Board of Directors may consider under Ohio law.
11. VOTE TO AMEND I. 75% VOTE. Notwithstanding any other
------------- provisions of these Articles of
ARTICLES Incorporation or the Code of Regulations
-------- of the Corporation (and notwithstanding
the fact that a lesser percentage may be
specified by law or in any agreement with
The NASDAQ Stock Market or any national
securities exchange or in any other
provision of these Amended and Restated
Articles of Incorporation or the Code of
Regulations of the Corporation), the
affirmative vote of the holders of at
least 75% of the votes entitled to be cast
by the holders of all then outstanding
shares of Voting Stock (as that term is
defined in ARTICLE 9 hereof), shall be
required to amend, alter, change or
repeal, or adopt any provisions
inconsistent with, ARTICLES 8, 10, 11 or
12 of these Amended and Restated Articles
of Incorporation, and the affirmative vote
of the holders of at least 75% of the
votes entitled to be cast by the holders
of all then outstanding shares of Voting
Stock, including the holders of at least a
majority of the votes entitled to be cast
by the holders of all then outstanding
shares of Voting Stock of the Corporation
not beneficially owned by a Substantial
Shareholder (as that term is defined in
ARTICLE 9), shall be required to amend
alter, change or repeal, or adopt any
provision inconsistent with ARTICLE 9 of
these Amended and Restated Articles of
Incorporation.
II. MAJORITY VOTE. Except as otherwise
provided in these Amended and Restated
Articles of Incorporation, including
without limitation Paragraph I of this
ARTICLE 11, the shareholders of the
Corporation may, by the affirmative vote
of the holders of at least a majority of
the votes entitled to be cast by the
holders of all then outstanding shares of
the Voting Stock, amend, alter, change or
repeal any provision contained in these
Amended and Restated Articles of
Incorporation.
12. VOTE TO AMEND I. Except as provided in Subparagraph II
------------- of this ARTICLE 12, and notwithstanding
CODE OF REGULATIONS any other provisions of these Amended
------------------- and Restated Articles of Incorporation
or the Code of Regulations of the
Corporation (and notwithstanding the fact
that a lesser percentage may be specified
by law or in any agreement with The NASDAQ
Stock Market or any
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national securities exchange or any other
provision of these Amended and Restated
Articles of Incorporation or the Code of
Regulations of the Corporation), the
affirmative vote of the holders of at
least 75% of the votes entitled to be cast
by the holders of all then outstanding
shares of Voting Stock (as that term is
defined in ARTICLE 9 hereof), shall be
required to amend, alter, change or
repeal, or adopt any provisions
inconsistent with, the Code of Regulations
of the Corporation: provided, however,
that if such amendment, alteration, change
or repeal has been approved by
three-fourths (3/4) of the Whole Board (as
defined in ARTICLE 9 hereof), the
shareholders may, by the affirmative vote
of the holders of at least a majority of
the votes entitled to be cast by the
holders of all then outstanding shares of
Voting Stock, approve such amendment,
alteration, change or repeal. Any
amendment to these Amended and Restated
Articles of Incorporation which shall
contravene the Code of Regulations in
existence on the record date of the
meeting of shareholders at which such
amendment is to be voted upon by the
shareholders, shall require the
affirmative vote of the holders of at
least 75% of the votes entitled to be cast
by the holders of all then outstanding
shares of Voting Stock; provided, however,
that if such amendment has been approved
by three-fourths (3/4) of the Whole Board,
the shareholders may approve such
amendment to these Amended and Restated
Articles of Incorporation by the
affirmative vote of the holders of at
least a majority of the votes entitled to
be cast by the holders of all then
outstanding shares of Voting Stock.
II. If and to the extent permitted by the Ohio
Revised Code as the same may be amended
from time to time, the Code of Regulations
of the Corporation, and any provision
thereof, may be amended, altered, changed
or repealed by the affirmative vote of
three-fourths (3/4) of the Whole Board;
provided that any amendment, alteration,
change or repeal which is materially
prejudicial to the substantive rights of
the shareholders of the Corporation (or
any class of shareholders of the
Corporation) may not be adopted by the
directors of the Corporation pursuant to
this Subsection II of ARTICLE 12. The
authority granted to the directors
pursuant to this Subsection II of ARTICLE
12 is in addition to, and shall not
abridge, the rights of the shareholders
and directors of the Corporation granted
pursuant to Subsection I of ARTICLE 12 of
these Amended and Restated Articles of
Incorporation.
14
13. VOTING I. MAJORITY VOTE. Notwithstanding any
------ provision of the Ohio Revised Code
MATTERS requiring for any purpose the vote,
------- consent, waiver or release of the holders
of shares of the Corporation entitling
them to exercise two-thirds (2/3) or any
other proportion of the voting power of
the Corporation or of any class or classes
of shares thereof, such action may be
taken by the vote, consent, waiver or
release of the holders of shares entitling
them to exercise not less than a majority
of the voting power of the Corporation or
of such class or classes, unless expressly
provided otherwise by statute or in these
Amended and Restated Articles of
Incorporation.
II. CUMULATIVE VOTING. Shareholders of the
Corporation shall not have the right to
vote cumulatively in the election of
directors.
14. SUPERSEDE These Amended and Restated Articles of
--------- Incorporation take the place of and supersede the
existing Amended and Restated Articles of
Incorporation of the Corporation.
15